Custody of Children MalaysiaJustice . Equality . Trust
Although both parents are bound by the law to provide the best possible life for the children, the law may determine who shall be the custodian of the children. Therefore, it is important to understand the legal definition of the custody of children Malaysia. The legal custodian has the right and responsibility to make the major decisions in the child’s life. The major decisions that need to be made include the child’s education, medical care, and welfare. For divorce lawyer in Malaysia, just look for us, The Divorce Lawyer Malaysia, as we are experts in handling custody of children cases.
According to Section 89 (1) Law Reform (Marriage and Divorce) Act 1976, the court empowers the person given custody to decide the upbringing and education of the child. The custody of a child comprises legal rights and responsibilities in raising the child and personal supervision of the child’s upbringing especially the right to keep the child in the custodian’s home.
The Factors That Determine Custody of Children
Child custody depends on:-
1) The welfare of the child.
2) The wishes of the parents.
3) The wishes of the child if he or she is capable of independent opinion.
The court presumes the mother to be the child custodian if the child is below 7 years old. But this rebuttable if there is concrete proof that the mother is incapable of looking after the child.
If the biological parents are unable to take custody of the child, the Adoption Act 1952 (Rev 1981) (“AA”) defines the term “guardian” as any person or body of persons other than the natural parents who has the custody of the child.
A guardian is one who is vested with the parental rights and duties over a child and who has the authority to determine the child’s long-term welfare.
The court may order joint guardianship and custody of the parents or sole guardianship and custody to either the father or mother, or guardianship to one parent and custody to the other.
In exceptional divorce cases, if both parents are incapable of looking after the child, then the court may grant custody to third parties such as the relatives of the child or welfare associations.
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Frequently Asked Questions (FAQs)
1) Who can apply for child custody?
Only the parents can apply but in exceptional circumstances, the High Court may grant temporary custody to the child’s relative or any welfare association that the court deems fit to look after the child.
2) When can I apply for the custody of my children?
You can do so any time. You do not need to wait for the divorce proceeding to commence, unlike maintenance claim.
3) Who can take custody of my child who is 3 years old?
Usually the mother will be given the custody of the young child. But exceptional cases, the court will consider other factors such as the welfare of the child and would act in the child’s best interests.
4) What is legal custody for the child?
The legal custody for the child means the authority to decide the health, safety and welfare of the child.
5) What is physical custody for the child?
This deals with where the child resides and how much time each parent can spend with the child.
6) Both of us want custody of our children. What happens if we cannot agree on this?
If both of you cannot agree on child custody, the court will then decide in the best interest of your children as to who is to have custody and the extent of the access for the non- custodial parent.
7) Can my child decide which parent to follow after my divorce?
The court will consider the wishes of the child if he/she is capable of independent opinion.
8) Can my husband take my child out of Malaysia without my consent?
Consult a lawyer. With the lawyer’s advice, file an application to restrain your husband from taking the child out of the country.
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
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